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Healthcare Liability Action Pre-suit Requirements

December 12, 2014

Healthcare Liability Action Pre-suit Requirements

CaseTimothy Davis, as surviving spouse and next of kin of Katherine Michelle Davis v. Michael Ibach, M.D., and Martinson Ansah, M.D.

Issue: Did Patient’s pre-suit notice’s failure to indicate attorney had no violations of the healthcare liability action statute require dismissal with prejudice?

Facts: Patient’s certificate of good faith failed to include a statement that the executing party had “zero” violations of the statute. Patient filed a voluntary nonsuit without prejudice. Doctors objected to dismissal without prejudice, contending that failure to strictly comply with the statute requires dismissal only with prejudice. The trial court granted voluntary nonsuit without prejudice, and Doctors appealed.

Appellate Decision:  The intermediate court affirmed in favor of the Patient, following an earlier decision in which a plaintiff was allowed to nonsuit without prejudice after failing to file a certificate of good faith altogether. Robles v. Vanderbilt University Medical Center, No. M2010-01771-COA-R3-CV, 2011 WL 1532069 (Tenn. Ct. App. Apr. 19, 2011). The court rejected Doctors’ reliance on a federal district court decision, Duncan v. Medical Education Assistance Corp., which had already been disregarded by a state court in Stovall v. UHS of Lakeside, LLC.

Review Granted:  November 19, 2014.

Prediction:  Ben thinks the Supreme Court will affirm in favor of the Patient. As the intermediate court noted, nothing in the healthcare liability statute precludes a plaintiff from exercising the “free and unrestricted” right to dismiss an action without prejudice provided in Tenn. R. Civ. P. 41.01.